Anti-sex-trafficking Proposition 35 is surprisingly controversial

Measure to toughen penalties for sex trafficking faces opposition from some veteran advocates and academics in the field of human trafficking.

Daphne Phung quit her job as a financial analyst to work full-time on getting…

Three years ago, on Valentine's Day weekend, a 34-year-old financial analyst happened upon a TV documentary series about sex trafficking in the United States.

Her friends were sound asleep in the next room, after a long day of snowboarding. Daphne Phung couldn't take her eyes off the screen and didn't sleep a wink that night. Echoing in her ear was the voice of one Ukrainian woman who was brought to the U.S. and forced into prostitution, telling the interviewer she never got justice for what was done to her.

Phung began researching the topic with like-minded friends, huddled around the kitchen table in her Fremont apartment. Two years in, she quit her job to work on the issue full time.

Now, Phung is the driving force behind a proposition on the November ballot that dramatically increases prison sentences and fines for traffickers and makes other sweeping changes to California's laws on human trafficking. Polls show voters favor it by a larger margin than any other proposition, and it is endorsed by a long list of prosecutors, law enforcement officials and politicians up and down the state. The campaign is backed by more than $2 million from Chris Kelly, Facebook's former privacy chief — while opponents have yet to raise a cent.

"I'm from Vietnam, a country where people don't trust the law to protect them," said Phung, who came to the U.S. as an 8-year-old and was naturalized when she was in college. The documentary, she said, "challenged my faith and my belief in America as the country that claims to provide freedom and equal protection for everyone."

If Proposition 35 passes, sex trafficking of a minor with force or fraud could be punished with up to a life term in prison — a crime currently punishable with a maximum eight-year sentence. It would also increase the fine for trafficking crimes to up to $1.5 million from the current cap of $100,000 and expand the definition of human trafficking to include creation and distribution of child pornography.

Its backers say the proposition brings the severity of punishments under state law up to par with federal cases, and will protect the public by requiring traffickers to register as sex offenders. They say the measure, known as the "Californians Against Sexual Exploitation Act," will also prevent re-victimization of those who are trafficked by prohibiting evidence of their commercial sex acts from being introduced in court.

Yet the proposition faces opposition from some veteran advocates and academics in the field of human trafficking who say the proposition, while bringing much-needed attention to the issue, is misguided and would probably have unintended consequences that could end up harming trafficking victims. They say the measure's approach of simply toughening penalties would do little to combat a multifaceted problem.

"At the core of their campaign is emotion and not fact, and not a true understanding of what's going on," said John Vanek, a retired lieutenant from the San Jose Police Department who works as a consultant on trafficking and has sat on state and federal committees on the issue.

Critics expressed concern that the hefty criminal fines that would be imposed under the proposition would hurt the chances of victims to be compensated in civil court — a process they said is a fundamental part of making a victim of human trafficking whole.

"The victims should be paid for their labor, whether their labor is picking fruit, cleaning someone's home or prostitution," Vanek said. "At the end of the day, one of the core processes in the path for a slave or a victim to regain their dignity is to be compensated for their work."

The proposition designates that the funds collected through the increased fines be doled out to law enforcement and victim service organizations. Even so, some organizations that would receive the funding said they were opposed.

"To take money from their victimization that would otherwise go to them directly is really not right," said Kay Buck, chief executive of Los Angeles-based Coalition to Abolish Slavery and Trafficking, one of the oldest groups working with human trafficking victims.

Kathleen Kim, a professor at Loyola Law School who coauthored California's current law, passed in 2005, said she found the Proposition 35's focus on sex trafficking problematic. She said the proposition's authors were conflating the problem of sexual exploitation through prostitution with the broader, more complex issue of trafficking.

Under the proposition, a labor trafficker would receive up to 12 years in prison, and the forced sex trafficking of an adult would garner sentences up to 20 years, and in the case of a minor, up to a life term.

The backers of Proposition 35 "represent a part of the anti-trafficking movement that wants a focus on sex trafficking crimes over labor trafficking," Kim said. "The sentencing hierarchy is not backed by any empirical evidence, and it sends the wrong message."